This is a bill to enjoin a sheriff's sale of real estate on execution. From an interlocutory decree sustaining a demurrer to the bill and a final decree dismissing the bill, the plaintiffs appealed.
A summary of the allegations of the bill, as amended, follows. The plaintiffs Roy R. Horn and Helen M. Horn are the owners of land in Nahant, described by metes and bounds, which is "Lot 1, as shown on plan entitled `Plan of a Portion of Land owned by the United Realty Corporation of Lynn,' O.W. McIntosh, C.E., Lynn, Massachusetts,
About a year earlier, on August 20, 1952, "the real estate" of Robert E. Byrne was attached on mesne process by virtue of a writ issued from the First District Court of Essex in an action in which Byrne was the defendant and Frederick J. Hitchcock, John L. Hitchcock, and William F. Hitchcock (defendants in the case at bar) were the plaintiffs. On February 19, 1954, the Hitchcocks recovered judgment against Byrne. On March 2, 1954, the defendant deputy sheriff Raymond deposited an attested copy of the execution in that action in the registry of deeds for the Southern District of Essex County. The return on the execution shows that on that date the deputy sheriff levied on and seized a parcel of land in Nahant, described by metes and bounds, which is not lot 1, the parcel owned by the plaintiffs, but is lot 3 on the McIntosh plan. Up to the filing of the present suit on May 27, 1954, nothing was filed in the registry of deeds which showed any levy on and seizure of lot 1. The defendant deputy sheriff advertised a sheriff's sale of lot 1 for June 5, 1954.
The defendants Hitchcock demurred, assigning three grounds, all in substance for want of equity in the bill. In the absence of argument on behalf of the defendants, we are unenlightened as to the precise reason for the judge's action in sustaining the demurrer.
We assume that the attachment on mesne process was a general attachment of all the real estate of Byrne lying in the district, and, accordingly, included both lot 1 and lot 3. G.L. (Ter. Ed.) c. 223, §§ 63, 64. In G.L. (Ter. Ed.) c. 223, § 59, it is provided: "Property which has been attached shall be held for thirty days after final judgment for the plaintiff or claimant so that it may be taken on execution, unless the attachment is sooner dissolved...." Under this or a substantially similar predecessor statute it is settled that the lien of the attaching creditor is gone unless
It follows that the decrees must be reversed, and an interlocutory decree is to be entered overruling the demurrer.